The Single Bench of the Delhi High Court in the case of Murari Mirchandani vs State & Ors. consisting of Justice Asha Menon observed that once the civil proceedings were pending, then proceeding would be initiated u/s 107 and not u/s 145 CrPC in case of any threat to breach of peace.
Facts
The petitioner, engaged in the business of real estate, pleaded that a property was leased by the Delhi Development Authority (“DDA”) to late Sh. Surender Kumar Sardana who died in 2011, leaving behind his siblings, namely, Jitender Sardana (since deceased, respondent no. 3 herein), Sushma Diwan, Sushila Arora (since deceased) and Pushpa Mendiratta, as his legal heirs. While the respondent no.3 approached the DDA for mutation of the property in favour of the surviving legal heirs, a complaint was filed by the respondent No.2 claiming to have purchased the property from Sh. Surender Kumar Sardana and being in possession of all original documents. The DDA intimated the respondent No.3 that no action could be taken because of the said complaint.
Procedural History
The respondent no.3 filed a police complaint alleging that the original documents had been stolen by a servant. In 2012, the respondent no.3 entered into a MoU on behalf of himself and his siblings with the petitioner for sale of the property for a total sale consideration of Rs.19 crores. An Agreement to Sell was also executed by the respondent no.3, on behalf of himself and Sushma Diwan and Sushila Arora for the 3/4th share in the property. But the sale could not be processed further as one of the daughters of his pre-deceased sister filed a suit for partition and the respondent No.3 was restrained from transferring the said property in any way. Once that suit was dismissed in 2014, the respondent No.3 informed the petitioner that he would be moving forward to put into effect the Agreement to Sell. In the meantime, the respondent No.2 had filed for impleadment in the said suit as the rightful owner of the property, which came as a complete surprise to the petitioner. So, he filed a suit for specific performance, declaration and permanent injunction against the respondent No.3. The respondent No.2 had also made a complaint upon which a Kalandara was prepared u/s 145 CrPC and the property in question was sealed. The SDM passed an order of status quo, after which the respondent No.2 approached this court by filing a petition for quashing of these proceedings. In the said petition, this court directed the SDM to dispose of the proceedings within a period of six months from the date of the order. The SDM disposed of the Kalandara, closing the proceedings u/s 145 CrPC.
After the dismissal of the revision petition against the said order of the SDM by the learned District and Sessions Judge in 2017, the respondent No.2 filed a fresh application in 2021 praying that the property be de-sealed, also praying that the possession be handed over to him. The SDM passed the impugned Notice to the respondent no.3 and Sh. Praveen Chauhan (Advocate), to appear before her, also intimating the petitioner of the filing of the application for de-sealing and handing over of the possession, by the respondent No.2.
Contentions Made
Petitioner: When civil proceedings were pending, the SDM could not have revived the question of de-sealing. Reliance was placed on Ram Sumer Puri Mahant v. State of U.P., Indubhai Patel v. State, Dalbir Singh v. State (NCT of Delhi) and Roop Lal Bhalla v. State to contend that once the civil proceedings were pending, the proceedings u/s 145 CrPC could not be initiated. Relying on Xxx v. State of Kerala it was also contended that even u/s 362 CrPC the courts are not empowered to recall its own judgement.
Respondent: Even though the civil suit was pending, not even summons had been issued to the respondent No.2 in that case. Moreover, the Coordinate Bench of this Court had issued no injunction against the respondent No.2, who was the defendant No.5 in that suit. As such, the respondent No.2 was well within his rights to have moved the SDM for de-sealing and handing over of the possession to him, being lawfully entitled to it.
Observations of the Court
The Bench noted that if there is any question of title of any property, then only a civil court that can decide it. The SDM must abide by the determination of the inter se rights of parties, whether interim or final, by the civil court. Relying on Dalbir Singh (supra), it was observed that in case where despite the civil case pending and orders being passed by the civil court therein, there was a threat to breach of peace, then proceeding would be initiated u/s 107 and not u/s 145 CrPC.
The Bench also noted that the Notice of 2021 was thus, ex facie perverse for two reasons. Firstly, the SDM has not observed the existence of an emergent ground of disruption of public peace, which may have justified the re-opening of the issue, though, once again, the provision to be invoked in that event was u/s 107 CrPC. Then the SDM committed the second error by issuing the impugned notice even without the production of any order of the civil court determining the rights either by an interim order or the final order.
Judgment
The Bench noted that the SDM’s action was completely in violation of the law and a perverse exercise of powers. So, to prevent the abuse of the process of court, the Notice was accordingly quashed.
Case: Murari Mirchandani vs State & Ors.
Citation: CRL.M.C. 2611/2021, CRL.M.A. 16867/2021
Bench: Justice Asha Menon
Decided on: 2nd June 2022
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